Citation NR: 9621309
Decision Date: 07/30/96 Archive Date: 08/06/96
DOCKET NO. 94-28 485 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for sinusitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from January 1962 to January
1982.
In a May 1993 rating decision, the regional office (RO)
denied service connection for sinusitis, degenerative disc
disease of the cervical spine, and generalized arthritis of
the hands, shoulders, “legs,” cervical spine and lumbar
spine. The RO did not provide the veteran with a complete
notification of action taken on his claim. The veteran
requested notice of action taken on the issues of service
connection for arthritis of the cervical spine and for
sinusitis. In response, the veteran was issued a statement
of the case on November 16, 1993, which included the issues
of service connection for arthritis of the cervical spine,
degenerative disc disease of the cervical spine, and
sinusitis. The veteran was also informed as to the denial of
the generalized arthritis issue. The veteran returned
Department of Veterans Affairs (VA) Form 9, his substantive
appeal, in which he discussed service connection for a
cervical spine disability and referred to generalized
arthritis. In a March 1994 rating decision, the veteran’s
claim of service connection for degenerative joint disease
and degenerative disc disease of the cervical spine was
granted. At that time, the RO indicated that service
connection remained denied for generalized arthritis, and
that the veteran would be so notified in a supplemental
statement of the case, ostensibly accepting the veteran’s
reference to generalized arthritis in his substantive appeal
as his timely notice of disagreement as to that issue. The
record does not include a supplemental statement of the case
or notice of the continued denial of service connection for
the claimed generalized arthritis. The Board of Veterans’
Appeals (Board) notes that arthritis of the hands was denied
by a February 1983 rating decision. This matter is referred
to the RO for appropriate development.
With respect to the issue of service connection for
sinusitis, the Board points out that the representative’s
statement completed on VA Form 1-646, dated in October 1994,
discusses this issue. Although the veteran did not refer to
the matter in his substantive appeal, the Board nonetheless
accepts jurisdiction over the issue, as the representative’s
statement may be considered a timely perfection of the
appeal. See 38 C.F.R. §§ 20.200, 20.202, 20.301 (1995). The
Board stresses that the veteran has limited his claim to this
issue and that the development of the claim has been limited
accordingly. Any claim that the veteran may wish to file for
a disorder of the sinuses other than sinusitis is referred to
the RO for any indicated development.
The record reveals that the venue of jurisdiction was changed
from Phoenix, Arizona to Albuquerque, New Mexico during the
processing of the veteran’s claims.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that sinusitis began in
service and persists to the present.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence of a well grounded claim of service connection for
sinusitis.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s claim has been obtained.
2. It has not been shown that the veteran currently has
sinusitis.
CONCLUSION OF LAW
The claim of service connection for sinusitis is not well
grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Pertinent Law and Regulations
The threshold question that must be resolved with regard to
each claim is whether the veteran has presented evidence that
the claim is well grounded. If he has not, his appeal fails
as to that claim, and the VA is under no duty to assist him
in any further development of that claim. 38 U.S.C.A.
§ 5107(a) (West 1991 & Supp. 1995); Murphy v. Derwinski,
1 Vet.App. 78 (1990).
Case law provides that although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet.App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992).
One element of a well grounded claim is a presently-existing
disability stemming from the disease or injury alleged to
have begun in or been aggravated by service. Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141 (1992). It has also been determined that a
well grounded claim requires (1) medical evidence of a
current disability, (2) lay or medical evidence of a disease
or injury in service, and (3) medical evidence of a link
between the current disability and the inservice injury or
disease. Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
In addition, where the determinant issue involves a question
of medical diagnosis or medical causation, competent medical
evidence to the effect that the claim is plausible or
possible is required to establish a well grounded claim.
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991 &
Supp. 1995); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded. Id.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A §§ 1110, 1131 (West 1991 & Supp. 1995).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1995).
II. Sinusitis
In a letter dated in December 1982, the veteran indicated
that his service medical records from 1962 to 1972 were not
available because, purportedly, they were lost in 1972 while
being transported from one Air Force Base to another.
Service medical records from the veteran’s remaining ten
years of service are available. In light of the compilation
of available evidence, including current clinical data, the
Board concludes that an attempt to obtain any additional
records, and the delay occasioned thereby, is neither
warranted nor justified.
In pertinent part, available service medical records reveal
that the veteran had sinus symptomatology at various times
between 1974 and 1978. In November 1978, the assessment was
sinus congestion secondary to a deviated nasal septum. In
February 1979, a report of a clinical examination noted that
the sinus series showed cloudiness of the left maxillary
sinus. The diagnostic assessment was left maxillary
sinusitis. Approximately three days later, it was noted to
be resolving. Radiographic interpretation of X-ray studies
of the sinuses conducted in service, including in November
1978 and February 1979, noted results within normal limits.
At a retirement examination in October 1981, it was noted
that the veteran had sinusitis and hay fever, and that the
disorders were followed up at a family practice clinic as
needed.
Private treatment records submitted by the veteran, dated
from 1982 to 1992, do not indicate the presence of sinusitis.
At a VA examination in December 1992, it was noted that an X-
ray study of the sinuses was taken and that the impression
was a negative sinus series. The diagnosis was sinusitis,
not found at present. No other evidence concerning the
sinuses was submitted.
The Board has considered all of the evidence pertinent to
this claim. The veteran essentially alleges that he has
sinusitis that was shown in service and which has continued
to the present. The Board points out that the determinative
issue in this case is medical in nature, and the evidence
required to meet the burden of presenting a well grounded
claim includes medical evidence of a current disability or a
medical opinion linking the alleged service incident to a
current disorder. See Caluza, 7 Vet.App. at 506; Grottveit
v. Brown, 5 Vet.App. 91, 92-93 (1993). Specifically, the
veteran must show that he currently has sinusitis. As
demonstrated above, the evidence fails to establish that the
disorder is currently present. As such, the Board must
conclude that his claim of service connection for sinusitis
is not well grounded, and that no further duty to assist the
veteran attaches to this claim. In light of the foregoing,
the veteran’s claim must be denied. See Rabideau v.
Derwinski, 2 Vet.App. 141, 144 (1992).
ORDER
Service connection for sinusitis is denied.
CATHERINE M. FLATLEY
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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